“It depends”

Ça Dépend is a constant source of frustration for consumers of legal services and the punchline of many jokes.  But it is true that lawyers are known for saying “It depends” in response to quick legal questions.  This is because there is a measure of uncertainty to legal opinions issued by lawyers and none of us want to be held responsible if our predictions don’t come true.  So, we cap off any opinion with an added “but it depends” or “but no one can predict the outcome”.

            Nowhere is this truer than in common law jurisdictions such as New York.  This is because fairness is measured very differently in a common law system than it is in a civil code system.  In civil law systems, judges are restricted in what they can do.  Once the applicable law is identified, there is not much leeway for decisions.  This adds predictability to outcomes and gets you far fewer nervously conveyed caveats by practitioners than in New York and other common law systems.  Civil law systems derive fundamental fairness from this predictability.

            So how do we measure fairness in New York Law and other common law systems?  For us, fairness isn’t in the similarity of outcomes rather the suitability of the outcome based on the specific facts of each case.  This doesn’t mean that a judge can arbitrarily assign an outcome, though it may feel that way to a civil system practitioner.  Rather it means that there is a larger range of potential outcomes from which a judge may draw their decision.  Earlier case law becomes crucial to predicting the trajectory of litigation.  Cases that are “on point”, or have similar facts to the case being analyzed, give some insight but with every new fact.  The outcome becomes more and more complex and well, the outcome… it depends…